Karnataka High Court
The Principal vs P Choodeshwara on 9 December, 2020
Bench: Alok Aradhe, H T Narendra Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF DECEMBER 2020
PRESENT
THE HON'BLE MR.JUSTICE ALOK ARADHE
AND
THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD
MFA NO.8691 OF 2017 (MV)
C/W
MFA Nos.1194/2018(MV), 1195/2018(MV) &
8690/2017(MV)
IN MFA 8691/2017
BETWEEN:
The Principal,
M/S. Green Wood High,
No.377, Sarjapura Road,
Koramangala III Block,
Bangalore-560 034. .... Appellant
(By Sri.K.T.Gurudeva Prasad, Adv.)
AND
1. P.Choodeshwara,
S/o Papaiah,
Aged about 44 years,
Residing at No.303/2,
Kamanadoddi,
Shoolagiri taluk,
2
Krishnagiri district,
Tamil Nadu-635 117.
2. Liberty Videocon General Insurance
Company Limited,
No.23, Old No.28,
Office No.1, Ayssa First Floor,
Rear Portion, Richmond Road,
Bangalore-560 025,
Represented by its Manager. ...Respondents
(By Sri.Shripad V Shastri, Adv. for R1:
Sri. O.Mahesh, Adv. for R2)
This MFA is filed under Section 173(1) of MV Act
against the judgment and award dated:16.08.2017
passed in MVC No.6143/2016 on the file of the
Member, PRL. MACT, Bengaluru, awarding
compensation of Rs.3,74,500 with interest @ 9% p.a.
on Rs.3,49,500/- from the date of petition till
realization.
IN MFA 1194/2018
BETWEEN
Sri.P.Choodeshwara,
S/o Papaiah,
Aged about 45 years,
R/at No.303/2, Kamanadoddi,
Shoolagiri taluk, Krishnagiri district,
Tamil Nadu. ... Appellant
(By Sri.Shripad V Shastri, Adv.)
3
AND
1. The Principal,
M/s. Green Wood High,
No.377, Sarjapura Road,
Koramangala III Block,
Bangalore-560 034.
2. Liberty Videocon General Insurance Co. Ltd,
No.23, Old No.28,
Office No.1, Ayssa First Floor,
Rear Portion, Richmond Road,
Bangalore-25. ...Respondents
(By Sri.K.T.Gurudeva Prasad, Adv. for R1:
Sri. O.Mahesh, Adv. for R2)
This MFA is filed under Section 173(1) of MV Act
against the judgment and award dated:16.08.2017
passed in MVC No.6143/2016 on the file of the
Member, PRL. MACT, Bengaluru, partly allowing the
claim petition for compensation and seeking
enhancement of compensation.
IN MFA 1195/2018
BETWEEN
1. Sri.P.Choodeshwara,
S/o Papaiah,
Aged about 45 years.
2. C.Manjunath,
S/p P.Choodeshwara,
Aged about 22 years.
4
3. C.Pooja,
D/o P. Choodeshwara,
Aged about 21 years.
All are Residing at
No.303/2, Kamanadoddi Village,
Shoolagiri taluk,
Krishnagiri district,
Tamil Nadu. ... Appellants
(By Sri.Shripad V Shastri, Adv.)
AND
1. The Principal,
M/s. Green Wood High,
No.377, Sarjapura Road,
Koramangala III Block,
Bangalore-560 034.
2. Liberty Videocon General
Insurance Co. Ltd,
No.23, Old No.28,
Office No.1, Ayssa First Floor,
Rear Portion, Richmond Road,
Bangalore-25. ...Respondents
(By Sri.K.T.Gurudeva Prasad, Adv. for R1:
Sri. O.Mahesh, Adv. for R2)
This MFA is filed under Section 173(1) of MV Act
against the judgment and award dated:16.08.2017
passed in MVC No.6144/2016 on the file of the
Member, PRL. MACT, Bengaluru, partly allowing the
claim petition for compensation and seeking
enhancement of compensation.
5
IN MFA 8690/2017
BETWEEN:
The Principal,
M/s. Green Wood High,
No.377, Sarjapura Road,
Koramangala III Block,
Bangalore-560 034. .... Appellant
(By Sri.K.T.Gurudeva Prasad, Adv.)
AND
1. P.Choodeshwara,
S/o Papaiah,
Aged about 44 years.
2. C. Manjunath,
S/o P.Choodeshwara,
Aged about 20 years.
3. C.Pooja,
D/o P.Choodeshwara,
Aged about 20 years.
All are Residing at
No.303/2, Kamanadoddi,
Shoolagiri taluk,
Krishnagiri district,
Tamil Nadu-635 117.
4. Liberty Videocon General Insurance
Company Limited,
No.23, Old No.28,
Office No.1, Ayssa First Floor,
6
Rear Portion, Richmond Road,
Bangalore-560 025,
Represented by its Manager. ...Respondents
(By Sri.Shripad V Shastri, Adv. for R1:
Sri. O.Mahesh, Adv. for R2)
This MFA is filed under Section 173(1) of MV Act
against the judgment and award dated:16.08.2017
passed in MVC No.6144/2016 on the file of the
Member, PRL. MACT, Bengaluru (SCCH-1), awarding
compensation of Rs.16,65,000/- with interest @ 9%
p.a. from the date of petition till realization.
These MFAs coming on for admission, this day,
H.T. Narendra Prasad J., delivered the following:
JUDGMENT
MFA Nos.8690/2017 and 8691/2017 are filed by the owner of the offending vehicle and MFA Nos.1194/2018 and 1195/2018 are filed by the claimants under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act', for short) being aggrieved by the judgment dated 16.08.2017 passed by the Motor Accident Claims Tribunal. Since, all the appeals arise out of the same 7 accident as well as a common judgment, they were heard together and are being decided by this common judgment.
2. Facts giving rise to the filing of the appeal briefly stated are that on 18.07.2016 at about 5.00 p.m., the claimant was riding the motorcycle bearing registration No.TN-70/K-4205 along with his wife as a pillion rider (deceased) from Kammanadoddi, Tamilnadu towards Varthur, Bangalore. When they reached Madina Nursery Farm, Dommasandra, at that time the driver of the mini bus bearing registration No.KA-01/AA-201 being driven by its driver at a high speed and in a rash and negligent manner, dashed to the motorcycle. As a result of the aforesaid accident, the claimant who was the rider of the said motorcycle sustained grievous injuries and was hospitalized and the pillion rider sustained grievous injuries and succumbed to the injuries on the way to the hospital. 8
3. The claimant in MVC No.6143/2016 filed petition under Section 166 of the Act on the ground that he was aged about 43 years and was working as Weaver at power looms and was earning Rs.15,000/- per month. It was pleaded that he also spent huge amount towards medical expenses, conveyance, etc. The claimants in MVC No.6144/2016 filed petition under Section 166 of the Act on the ground that the deceased was aged about 36 years and was working for NGO by name Mahatma Development Society and was also an agriculturist and was earning Rs.20,000/- per month. It was further pleaded that the accident occurred purely on account of the rash and negligent driving of the offending vehicle by its driver.
4. On service of notice, the respondent Nos. 1 and 2 have filed separate written statements in which 9 the averments made in the petition were denied. It was pleaded by respondent No.1 that the accident occurred due to the rash and negligent riding of the vehicle by the claimant himself. The age, avocation and income of the claimant and the deceased and the medical expenses are denied. It was further pleaded that the quantum of compensation claimed by the claimants is exorbitant.
It was pleaded by respondent No.2 that the liability if any is subject to the terms and conditions of the policy. It was further pleaded that the owner has not complied the statutory obligation under Section 134(c) of the Act and police have not complied the provisions of Section 158(6) of the Act. The age, avocation, income of the claimants and the deceased were denied. It was further pleaded that the offending vehicle had no valid fitness certificate and the driver was not holding a valid and effective driving licence. 10 It was further pleaded that the compensation claimed by the claimants is exorbitant. Hence, they sought for dismissal of the petition.
5. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimant himself was examined as PW-1, Medical Record Technician of Kaveri Hospital, Hosur as PW-2 and Dr.Avinaash Parthasarathy as PW-3 and got exhibited 31 documents namely Ex.P1 to Ex.P31. On behalf of the respondents, an officer of the insurance company was examined as RW-1 and an official of the RTO office, Koramangala as RW-2 and got exhibited 10 documents namely Ex.R1 to Ex.R10. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the offending vehicle by its driver, as a result of which, the claimant sustained injuries 11 and the deceased succumbed to the injuries. The Tribunal further held that the claimants are entitled to compensation of Rs.3,74,500/- along with interest at the rate of 9% p.a. on Rs.3,49,500/- and Rs.16,65,000/- with interest at 9% p.a. from the date of petition till payment, receptively and directed the owner of the offending vehicle to deposit the compensation amount along with interest. Being aggrieved, the owner has preferred MFA Nos.8690/2017 & 8691/2017 and being not satisfied with the compensation claimants have preferred MFA Nos.1194/2018 and 1195/2018.
6. The learned counsel appearing for the owner of the offending vehicle has raised the following submissions:
Firstly, the Tribunal is not justified in fastening the liability on the owner of the offending vehicle since the offending vehicle was insured with the second 12 respondent insurance company. As on the date of the accident the driver of the offending vehicle was holding a valid and effective driving licence, there is no condition in the policy that the driver of the school bus should have 4 years experience and if there is any violation of the Circular dated 18.01.2013, it is an offence and for that the insurance company cannot avoid liability. The driver of the offending vehicle was holding licence to drive LMV as well as LMV transport vehicle. Therefore, the Tribunal is not justified in fastening the liability on the owner of the offending vehicle. Hence, he sought for allowing the appeals filed by the owner of the offending vehicle.
7. On the other hand, learned counsel appearing for the insurance company has raise the following contentions:
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Firstly, a Second Division Clerk of the RTO office, Koramangala has been examined as RW-2. He has specifically stated that as per the Circular dated 18.01.2013 the driver of the school bus must have 4 years experience to drive the LMV transport vehicle.
Since the insured has violated the policy condition, the insurance company is not liable to pay the compensation.
Secondly, in MVC No.6144/2016 contrary to the law laid down by the Hon'ble Apex Court in the case of 'NATIONAL INSURANCE CO. LTD. -v- PRANAY SETHI AND OTHERS' AIR 2017 SC 5157, the Tribunal considered addition of 50% towards future prospects instead of 40%. Contrary to the law laid down by the Hon'ble Apex court n the case of 'MAGMA GENERAL INSURANCE CO. LTD. -V- NANU RAM' 2018 ACJ 2782, the compensation awarded by the Tribunal under the head 'loss of 14 consortium and loss of love and affection' and other conventional heads is on the higher side.
Thirdly, for the accident of the year 2016 the rate of interest awarded by the Tribunal at 9% p.a. is on the higher side. Hence, he sought for dismissal of the appeals.
8. The learned counsel appearing for the claimants has raised the following contentions:
MVC No.6143/2016:
Even though the claimant claims that he was working as a weaver and was earning Rs.15,000/- per month, but the Tribunal has taken the notional income as only Rs.8,000/- per month.
Secondly, the doctor has assessed the disability at 12%, the claimant was treated as inpatient for a period of 7 days. Even after discharge from the hospital, he was not in a position to discharge his regular work. He has suffered lot of pain during 15 treatment. Considering the same, the compensation granted by the Tribunal are on the lower side.
MVC No.6144/2016:
Even though the claimants claim that the deceased was earning Rs.20,000/- per month, but the Tribunal has taken the notional income as only Rs.8,000/- per month. The compensation granted by the Tribunal on the other heads are on the lower side. Hence, he sought for allowing the appeals filed by the claimants.
9. We have considered the submissions made by the learned counsel for the parties and have perused the records.
10. It is not in dispute that the accident has occurred due to rash and negligent driving of the offending vehicle by its driver.
16
MVC No.6143/2016:
Even though the claimant claims that he was earning Rs.15,000/- per month he has not produced any evidence with regard to his income. Therefore, the notional income has to be assessed as per the guidelines issued by the Karnataka State Legal Services Authority. Since the accident has taken place in the year 2016, the notional income has to be taken at Rs.9,500/- p.m. Even though the doctor has assessed the whole body disability at 14%, the Tribunal considering the evidence of the doctor and wound certificate has rightly assessed the disability at 12%. The claimant was aged about 43 years at the time of the accident and multiplier applicable to his age group is '14'. Thus, the claimant is entitled to Rs.1,91,520/- (Rs.9,500*12*14*12%) on account of 'loss of future income'.17
Since the income of the claimant is enhanced to Rs.9,500/- per month, the claimant is entitled for compensation of Rs.38,000/- (Rs.9,500*4 months) under the head 'loss of income during laid up period'. The compensation awarded by the Tribunal under other heads remains unaltered.
11. Thus, the claimant is entitled to the following compensation:
As awarded As awarded Compensation under by the by this different Heads Tribunal Court (Rs.) (Rs.) Pain and sufferings 40,000 40,000 Medical expenses 86,000 86,000 Food, nourishment, 10,000 10,000 conveyance and attendant charges Loss of income during 32,000 38,000 laid up period Loss of amenities 20,000 20,000 Loss of future income 1,61,500 1,91,520 Future medical expenses 25,000 25,000 Total 3,74,500 4,10,520 18 The claimant is entitled to a total compensation of Rs.4,10,520/-.
MVC No.6144/2016:
12. The claimants have not produced any evidence or documents with regard to the income of the deceased. Therefore, the notional income has to be assessed as per the guidelines issued by the Karnataka State Legal Services Authority. Since the accident has taken place in the year 2016, the notional income has to be taken at Rs.9,500/- p.m. To the aforesaid amount, 40% has to be added on account of future prospects in view of the law laid down by the Constitution Bench of the Supreme Court in PRANAY SETHI (supra). Thus, the monthly income comes to Rs.13,300/-, out of which, we deem it appropriate to deduct 1/3rd towards personal expenses and therefore, the monthly income comes to 19 Rs.8,867/-. The deceased was aged about 36 years at the time of the accident and multiplier applicable to his age group is '15'. Thus, the claimants are entitled to compensation of Rs.15,96,060/- (Rs.8,867*12*15) on account of 'loss of dependency'.
In view of the law laid down by the Supreme Court in MAGMA GENERAL INSURANCE (supra), claimant No.1, husband of the deceased is entitled for compensation of Rs.40,000/- under the head of 'loss of spousal consortium' and claimant Nos.2 and 3, children are entitled for compensation of Rs.40,000/- each under the head of 'loss of parental consortium'.
In addition, the claimants are entitled to Rs.15,000/- on account of 'loss of estate' and Rs.15,000/- on account of 'funeral expenses'.
13. Thus, the claimants are entitled to the following compensation:
20
Compensation under Amount in
different Heads (Rs.)
Loss of dependency 15,96,060
Funeral expenses 15,000
Loss of estate 15,000
Loss of spousal 40,000
consortium
Loss of Parental 80,000
consortium
Total 17,46,060
The claimants are entitled to a total
compensation of Rs.17,46,060/-.
14. In so far as the liability is concerned, it is not in dispute that as on the date of the accident the offending vehicle was covered with the insurance policy. It is also not in dispute that as per Ex.R5 licence the driver of the offending vehicle was holding licence to drive LMV non-transport from 01.07.2013 to 30.06.2033 and LMV transport from 27.03.2015 to 26.03.2018. The policy condition in respect of Drivers clause is extracted hereinbelow: 21
"Persons or classes of person entitled to drive: Any person including the insured:
Provided that a person driving holds an effective driving licence at the time of the accident and is not disqualified from holding or obtaining such a licence. Provided also that the person holding an effective learner's licence may also drive the vehicle when not used for the transport of passengers at the time of the accident and that such a person satisfies the requirements of Rule 3 of the Central Motor Vehicle Rules, 1989."
As per the policy condition, the driver of the offending vehicle was holding a valid and effective driving licence and there is no violation of any policy conditions. If there is violation of Rule 6(10) of the Karnataka Motor Vehicles (Conditions for Vehicles Engaged in Transport of School Children) Rules, 2012, it is an offence under the Act. The defence under 22 Section 149(2)(a) of the Act was available to an insurer when a claim is filed either under Section 163- A or under Section 166 of the Act. The insurance company has not produced any evidence to prove that accident occurred on account of the driver not having four years' experience to drive LMV - transport vehicle. The breach of a policy condition has to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence of or production of fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third party. The insurance company, to avoid liability, must not only establish the available defence raised in the concerned proceeding but must also establish breach on the part of the owner of the vehicle for which the burden of proof would rest with the insurance 23 company. Whether such a burden had been discharged, would depend upon the facts and circumstances of each case. Even when the insurer is able to prove breach on the part of the insured concerning a policy condition, the insurer would not be allowed to avoid its liability towards the insured unless the said breach of condition is so fundamental as to be found to have contributed to the cause of the accident. Therefore, the insurance company cannot avoid the liability. Hence, the insurance company is directed to deposit the compensation amount along with interest within a period of four weeks from the date of receipt of copy of this judgment.
Since the accident is of the year 2016, the rate of interest is reduced from 9% p.a. to 6% p.a. from the date of petition till payment is made.
To the aforesaid extent, the judgment of the Claims Tribunal is modified.
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The amount in deposit is ordered to be refunded to the owner of the offending vehicle.
Accordingly, the appeals are disposed of.
Sd/-
JUDGE Sd/-
JUDGE Cm/-